Are You Running Out Of Time? Understanding Time Limits In Family Court Matters

Divorce can be extremely taxing on you and your family, this can lead to couples delaying their property settlement and spouse maintenance applications. However, like all legal actions, time limits apply in family law matters. You should be aware that these time limits affect the time frame you have to bring an action in the Family Court.

Marriages

When a married couple separates, they must be separated for a period of 12 months prior to applying for a divorce. Following the Court granting a final divorce order (decree absolute), the parties must commence property proceedings within 12 months after the Divorce Order takes effect.

A Divorce Order takes effect one month after the date the Court makes the Divorce Order.  After that time an application for property settlement or spousal maintenance cannot be made without first obtaining the leave of the Court, and the leave of the Court is not assured.

Related Article: How Long Does It Take To Get Divorced In Australia?

De-Facto Relationships

Under section 4AA of the Family Law Act 1975 a person is in a de-facto relationship with another person if:

1. a)    The persons are not legally married to each other;
2. b)    The persons are not related by family; and
3. c)    Having regard to all the circumstances of their relationship, they have a relationship as a couple who are together on a genuine domestic basis.

There is no time limit on how soon after separation parties can commence property settlement negotiations however; proceedings for property settlement must be commenced within 2 years following separation.

For that reason, the date of separation is very important when a de-facto relationship breaks down.

If there is a dispute about when the date of separation occurred the Family Court will look to the evidence presented by both parties as well as any available independent evidence.

If two years has passed since the date of separation and an application for property or spousal maintenance is made to the Family Court, the application cannot proceed without first obtaining the leave or permission of the Court, and as with married couples, leave of the Court is not assured.

Children’s Matters

There is no time limit in respect to filling an application for issues relating to a child or a relationship whether the parties were married or in a de facto relationship. You have the ability to commence court proceedings at any time so long as there is a child under the age of 18 years of age.

Have You Run Out Of Time?

Under section 44(6) of the Family Law Act, the Court has the power to grant parties leave to file an application to the Court for a property settlement “out of time”.

In order to obtain leave from the Court to commence property settlement proceedings “out of time” the Court will need to hear reasons as to why it should grant the leave requested, having regard to:

1. a)    possible hardship to the applicant or a child of the relationship if leave were not granted;
2. b)    whether the applicant has a reasonable claim to adjust property interests; and
3. c)    the length of the delay and reasons for such delay.

Note: This is general information advice only and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters, please contact us on 03 9620 0088 or email info@resolveconflict.com.au